Citation Nr: 1329645 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-23 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service- connection for the cause of the Veteran's death, and if so, whether the claim may be granted. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to payment of Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. § 1151 (formerly 38 U.S.C.A. § 351), and if so, whether the claim may be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's brother ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from March 1944 to May 1945; he passed away in January 1979. The appellant is his surviving spouse. These matters come before the Board of Veterans Appeals (Board) on appeal from a January 2011 rating decision by the Waco, Texas, Regional Office (RO) of the United State Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service-connection for cause of the Veteran's death. The appellant and her brother testified at a December 2012 hearing held at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file. The issue has been recharacterized as above to properly reflect the allegations of the appellant, as well as the issues actually adjudicated by VA in the course of the claim. When this case was most recently before the Board in February 2013, it was remanded for further development. It is now before the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As an initial matter, the Board observes that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The February 2013 Board remand stipulated that the appellant should be provided proper notice. The AMC sent the appellant a notice letter in April 2013. In the letter, the AMC notified the appellant of the new and material evidence needed to reopen the previously denied claims and identified the correct bases for the prior denial. The AMC also attached information on how to establish service connection for the cause of the Veteran's death. Despite this, the AMC letter did not fully comply with the notice required under Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In the context of a claim for DIC benefits, to include service connection for the cause of death, notice must include a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The AMC letter states that service connection was not established for any disability during the Veteran's lifetime when in fact, the Veteran was service-connected for paralysis of the left peroneal nerve (evaluated as 40 percent disabling), a gunshot wound to the left leg with injury to Muscle Group XI (evaluated as 20 percent disabling), and a gunshot wound to the right flank with injury to Muscle Group XVII (evaluated as 20 percent disabling). A total compensation rating based upon individual unemployability had also been granted. The Veteran was also awarded special monthly compensation based upon loss of use of one foot. The case must be remanded so that the AMC can send the corrected notice to the appellant, to include a statement of the conditions for which a Veteran was service-connected at the time of his death, evidence required to substantiate DIC claim based on these conditions and an explanation of evidence and information required to substantiate a DIC claim based on conditions not yet service-connected. Id. The Board remand also required that the appellant be asked to specify whether she is seeking service connection for the cause of the Veteran's death as well as claiming entitlement to benefits under 38 U.S.C.A. § 1151 based on VA treatment. In the April 2013 letter, the AMC asked the appellant this question but left off "§ 1151." The AMC attached DIC notice, notice for service connection claims and notice regarding new and material evidence claims. The AMC did not include notice of what evidence must be shown for claims under 38 U.S.C.A. § 1151. The AMC letter also did not mention that the appellant can submit evidence that the Veteran's death, to include due to development of the radiation-induced pulmonary fibrosis, was an unforeseeable event. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the appellant a letter with fully compliant notice as required under applicable laws, regulations, and legal precedents. 38 U.S.C.A. §§ 1151, 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006); Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Notice must include notice of the disabilities that the Veteran was service-connected for at the time of his death: paralysis of the left peroneal nerve (evaluated as 40 percent disabling), a gunshot wound to the left leg with injury to Muscle Group XI (evaluated as 20 percent disabling), and a gunshot wound to the right flank with injury to Muscle Group XVII (evaluated as 20 percent disabling). A total compensation rating based upon individual unemployability had also been granted. The Veteran was also awarded special monthly compensation based upon loss of use of one foot. The AMC should note evidence required to substantiate DIC claim based on these conditions and an explanation of evidence and information required to substantiate a DIC claim based on conditions not yet service-connected. Notice must also include: Your claim was previously denied because the Veteran's cause of death was not found to be related to service nor the product of negligence, lack of proper skill, error in judgment, or similar instance of indicated fault on the part of the VA. In order to reopen the previously denied claim for payment of DIC benefits under 38 U.S.C.A. § 1151, you must present new and material evidence relevant to either a showing: (1) that VA was at fault (careless, negligent, lacked proper skill, error of judgment or similar instance of fault on VA's part) in the Veteran's death, or (2) that the death, to include due to development of the radiation-induced pulmonary fibrosis, was an unforeseeable event. One example of evidence that you can submit that could be considered requisite new and material evidence in certain circumstances is a private medical opinion stating that VA was at fault in the Veteran's death, or that the death, to include due to development of the radiation-induced pulmonary fibrosis was an unforeseeable event. 2. The notice letter must also asked the appellant to specify whether she is seeking service connection for cause of the Veteran's death as well as entitlement to payment of Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. § 1151 based on VA treatment. 3. The AMC should attach notice regarding DIC claims, new and material evidence claims and entitlement to benefits under 38 U.S.C.A. § 1151. 4. After the above notice has been sent to the appellant and the appellant is given an appropriate amount of time to respond, readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the appellant and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellant review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).